FPC, 28.01.2026, RR.2025.115, RP.2025.43
Facts
The Polish authorities, conducting a criminal investigation into A. for affray and assault, have submitted a request for mutual legal assistance to Switzerland. They requested that A., who is detained in Switzerland, be notified of the charges, receive a written warning regarding his rights as a suspect under Polish law, and subsequently be questioned about the facts.
The Public Prosecutor's Office III of the Canton of Zurich (MP III ZH), responsible for the execution, conducted the questioning of A. in the presence of his lawyer. Previously, it had denied the lawyer access to the file prior to the questioning. During the interrogation, A. objected to the transmission of the transcript to Poland.
Following the questioning, the MP III ZH transmitted the file to the lawyer and, by closing decision dated June 20, 2025, authorized the transmission of the transcript to the Polish authorities. A. appealed this decision to the Appeals Chamber of the Federal Criminal Court, alleging a violation of his right to be heard.
Law
The Appeals Chamber reiterates the principles governing international mutual assistance in criminal matters between Switzerland and Poland, which is regulated by the ECPMA and, subsidiarily, by the Federal Act on International Mutual Assistance in Criminal Matters (IMAC).
It examines two aspects of the right to be heard:
- Access to the file (art. 80b para. 2 IMAC): In matters of mutual assistance, access to the file must be granted no later than before the closing decision is issued. A temporary restriction on access, particularly until after a questioning, is permissible so as not to influence the statements of the person being questioned.
- Compliance with the procedural forms of the requesting state (art. 65 IMAC): Although acts of mutual assistance are in principle governed by Swiss law (locus regit actum), the executing authority may apply foreign procedural forms if the requesting state so requests and if they are not contrary to Swiss law. This provision aims to ensure the admissibility of the evidence collected and to avoid "useless" mutual assistance.
- The right to be heard (art. 30 para. 1 APA): Before issuing its closing decision, the executing authority must give the person concerned the opportunity to comment on the proposed mutual assistance measure.
Application to the specific case
The Complaints Chamber examines the appellant's grievances:
- Refusal of access to the file prior to the hearing: The grievance is rejected. The appellant was able to consult the complete file after their hearing and before the closing decision, which is consistent with practice and the law in order to preserve the spontaneity of the hearing.
- Failure to comply with the hearing procedures required by Poland: The appeal is upheld on this point. The Polish request required a specific order: first, notification of the charges and rights, then the hearing. The Public Prosecutor's Office III of the Canton of Zurich (MP III ZH) did not follow this sequence, only providing the Polish documents during the interrogation. By deviating from the required procedures without justification, the MP III ZH created a serious risk that the transcript would be unusable in the Polish proceedings, thereby rendering the mutual assistance potentially useless within the meaning of Art. 65 of the Federal Act on International Mutual Assistance in Criminal Matters (IMAC).
- Violation of the right to be heard: The Court notes ex officio another violation of the right to be heard. After transmitting the file to the lawyer, the MP III ZH issued its closing decision without giving the appellant the opportunity to state their position, which contravenes Art. 30 para. 1 of the Federal Act on Administrative Procedure (APA).
Outcome
The Complaints Chamber upholds the appeal and annuls the closing decision of the MP III ZH. The case is referred back to the cantonal authority for a new decision. The authority must either demonstrate that the transcript is usable in Poland despite the procedural defects, or conduct a new hearing while complying with the formalities required by the requesting state.
No court costs are charged. The MP III ZH is ordered to pay the appellant legal costs of CHF 2,000. The appellant's request for legal aid becomes moot.
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